983 F.

2d 1059

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Wayne THOMAS, a/k/a Eugene Gregory, DefendantAppellant.
No. 92-5188.

United States Court of Appeals,

Fourth Circuit.
Argued: December 4, 1992
Decided: January 7, 1993

Appeal from the United States District Court for the District of Maryland,
at Baltimore.
Magdalena Alboronoz Bell, KUPFERBERG & BERNSTEIN, for
Appellant.
Stephen Scott Zimmerman, Assistant United States Attorney, for
Appellee.
Steven D. Kupferberg, KUPFERBERG & BERNSTEIN, for Appellant.
Richard D. Bennett, United States Attorney, for Appellee.
D.Md.
AFFIRMED.
Before RUSSELL and WILKINSON, Circuit Judges, and MERHIGE,
Senior United States District Judge for the Eastern District of Virginia,
sitting by designation.

PER CURIAM:

OPINION
1

Wayne Thomas appeals from his conviction for possession with intent to
distribute cocaine, conspiracy to distribute cocaine, and possession of a firearm
in connection to a drug trafficking crime. Because we find no error in his
convictions, we affirm.

I.
2

On May 7, 1991, Thomas drove to the Red Roof Inn in Oxen Hill, Maryland, to
visit Sydney Eleanor Burch. At that time, agents from the Bureau of Alcohol,
Tobacco and Firearms (ATF) and the Drug Enforcement Administration (DEA)
were questioning and searching various individuals suspected of cocaine
dealing at the motel. The officers observed Thomas arrive in his black BMW
and ascend a flight of stairs to the floor on which the searches were occurring.
A confidential informant on the scene had identified the driver of the black
BMW as a known drug dealer.

Special Agent Virginia O'Brien followed Thomas from the parking lot to
Burch's room. When Thomas arrived at the room, he knocked on the door and
Burch answered. At that time, O'Brien identified herself to Thomas and asked
Burch to step through the door.

Also at that time, Special Agent Gerald Crispino approached Thomas. Crispino
identified himself to Thomas as a federal agent and asked him if he had a car.
Thomas identified the black BMW. Crispino asked Thomas if there were any
weapons or drugs on his person or in the car. Thomas said there were not. At
this point, Crispino asked Thomas if he could search his car and his person.
Thomas consented and handed his keys to Crispino. A search of Thomas'
person revealed nothing. Thomas accompanied O'Brien and Crispino to the
black BMW, where a search of the car revealed a 9mm handgun with an
obliterated serial number, a substance later determined to be crack cocaine, and
$4000 in cash. At that time Crispino handcuffed Thomas and placed him under
arrest.

Thomas' version of the events at the motel was different. Thomas testified at
the suppression hearing that when he arrived at the room, Crispino started
frisking him without his consent. In doing so, Crispino allegedly took Thomas'

car keys, and without his consent, proceeded to search his car. Thomas also
testified that Crispino and O'Brien ordered him to sit on the curb while they
searched his car.
6

At the same time Thomas' car was searched, Special Agent Michael Bouchard
obtained written consent from Burch to search her hotel room. Several special
agents conducted the search and discovered a bag containing 82 ziplock bags,
each containing a white powdery substance, which was later tested and found to
be cocaine. The search also revealed a utility knife with cocaine base residue, a
small amount of cocaine base, and a large number of empty ziplock bags.

After the search, Burch signed a written waiver of her Miranda rights and gave
a written statement to Special Agent Gary Blanch in which she stated that the
drugs in the room belonged to Thomas. Burch was placed under arrest.

On September 16, 1991, Thomas was tried on a five-count indictment by a jury

in front of Judge Frederic Smalkin.1 Before trial, a suppression hearing was
held, where Thomas argued two motions. First, Thomas argued that the
government should be compelled to produce the names and addresses of the
individuals present at the Red Roof Inn during his arrest, and second, Thomas
argued that the fruits of the search of his car should be suppressed because of
lack of consent. The district court denied both motions.

At trial, the government introduced the evidence obtained during the search of
Thomas' car against him. In addition, in exchange for a plea agreement, Burch
testified that cocaine found in her room was actually Thomas', and that Thomas
was a drug dealer.

10

On September 20, 1991, the jury returned a guilty verdict on every count on
which Thomas was charged. On March 4, 1991, the district court sentenced
Thomas to two hundred forty (240) months on counts one through four, and
sixty (60) months on count five, to be served consecutively. Thomas appeals
his convictions.

II.
11

Thomas argues that the district court erred, under Brady v. Maryland, 373 U.S.
83 (1963), in denying his motion to compel the United States to disclose the
identities of the individuals present on the balcony at the motel when Thomas
was searched and arrested. In an attempt to present corroborating evidence on
the issue of consent to the search of his car, Thomas had moved to compel

production of the names and addresses of those individuals who the ATF and
DEA agents were searching on the balcony at the time he arrived at the Red
Roof Inn.
12

At the suppression hearing, Thomas rested on his alleged lack of consent to the
search as his defense. He argued that the search of his car was performed
without his consent and without probable cause, and therefore violated the
Fourth Amendment. The United States countered with the testimony of the
agents involved in the arrests. The district court concluded that the issue of
consent was "a straight credibility call," and found that the testimony did not
"say to [him] that the consent was involuntary or coerced." The district court
denied Thomas' motion to suppress, and also denied his motion to compel,
stating that the government had no obligation to attempt to locate and/or
interview every possible witness.

13

Thomas contends that it was error for the district court to deny his motion to
compel because the individuals present on the balcony at the Red Roof Inn
during his arrest might be able to shed light on the events surrounding the
obtaining of Thomas' consent. Because Thomas bases his challenge on Brady,
we are required to review the district court's denial of his motion to compel de
novo. United States v. Marashi, 913 F.2d 724, 731 (9th Cir. 1990).

14

In Brady, the Supreme Court held that the suppression of evidence "favorable
to the accused upon request violates due process where the evidence is material
either to guilt or to punishment." 373 U.S. at 87. Under Brady, a defendant must
prove three elements to establish a due process violation: (1) that the
prosecution withheld or suppressed evidence; (2) that the evidence is favorable;
and (3) that the evidence is material to the defense. Moore v. Illinois, 408 U.S.
786, 794-95 (1972). "Evidence is 'material' when 'there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A "reasonable probability" is a
probability sufficient to undermine confidence in the outcome.' " Jean v. Rice,
945 F.2d 82, 87 (4th Cir. 1991) (quoting United States v. Bagley, 473 U.S 667,
682 (1985)). "Impeachment evidence as well as exculpatory evidence ... falls
within the principles of Brady." Id. at 87 n.9 (citing Giglio v. United States,
405 U.S. 150, 154-55 (1972)). "There is no general constitutional right,"
however, "to discovery in a criminal case, and Brady did not create one."
Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Polowichak,
783 F.2d 410, 414 (4th Cir. 1986).

15

The United States insists that it did not violate Brady because it "had absolutely
no information in its possession that indicated that the individuals questioned at

the Red Roof Inn during the time that the appellant was questioned possessed
any evidence that might be favorable to the defendant." It argues, therefore, that
because Brady does not "require the disclosure of evidence based only on utter
speculation that the evidence may possibly contain or lead to information
favorable to the defense," United States v. Agurs, 427 U.S. 97, 110-11 (1976);
Polowichak, 783 F.2d at 414, the district court did not err in denying Thomas'
motion to compel.
16

The argument that the two additional persons who were present on the third
floor heard the discussion between Officer Crispino and Thomas and could
testify to the circumstances under which Thomas was said to have consented to
a search is incredible. Officer O'Brien testified at the suppression hearing that
she was standing within five to six feet of Thomas and Crispino at the time
Crispino allegedly took Thomas' car keys, and that she was unable to hear
anything that was being said between the two. (J.A. at 166-67) In light of her
testimony, it is impossible to believe that either individual standing twenty-five
to thirty feet down the hall conversing with other officers would have been able
to testify concerning what transpired between Crispino and Thomas.

17

Even if we were to accept the remote possibility that one of the individuals on
the balcony had any information pertaining to the consent issue, it is obvious
that Thomas himself made no effort to obtain their names. The district court
noted at the suppression hearing that Thomas could "do investigations as well.
You can send an investigator to Red Roof Inn to find out who was registered
there. These things are not solely known to the government." (J.A. at 123)
Moreover, ATF Agent Michael Bouchard testified at the suppression hearing
that Alice Williams and Alvin Bennett were the subjects of the surveillance at
the Red Roof Inn on that day, and that Williams was a registered guest at the
motel on the third floor. (J.A. at 129-30) He also gave the address of Alice
Williams, (J.A. at 129), but had no knowledge of Bennett's address. An
investigation of the guests registered on the third floor of the Red Roof Inn by
Thomas would have at least revealed the name of the two individuals relevant
to Thomas' inquiry. Had the motel been less than forthcoming with that
information, it was certainly within the power of the district court to issue a
subpoena to compel production of the register, and certainly had the names
been discovered, the district court could have issued subpoenas to the witnesses
to compel their presence, as the district court contemplated after the
suppression hearing. (J.A. at 204) In light of all these circumstances, we find
that the district court did not err in denying Thomas's Brady claim.

III.

18

Thomas also argues that the district court erred in failing to instruct the jury
that cocaine base contained the hydroxyl radical. Specifically, Thomas argues
that because the government's expert witness admitted that he did not test for
the presence of the hydroxyl radical in the substance obtained from Thomas'
car, the government failed to establish that the substance was cocaine base, for
the purposes of 21 U.S.C. 841(a)(1) and 21 U.S.C. 846. We review the
question of whether the district court gave proper instructions to the jury de
novo. United States v. Dove, 916 F.2d 41, 45 (2d Cir. 1990).

19

Thomas bases his argument on the case of United States v. Brown, 859 F.2d
974, 975-76 (D.C. Cir. 1988), in which the court defined cocaine base as "any
form of cocaine with the hydroxyl radical." In United States v. Pinto, 905 F.2d
47, 49 (4th Cir. 1990), however, the Fourth Circuit held that the term cocaine
base, as used in the Sentencing Guidelines, included what is commonly known
as crack, the substance found in Thomas' car. In light of this case, it does not
appear that the government was required to prove that the substance in question
contained the hydroxyl radical. The district court's instruction2 properly
allowed the jury to conclude, based on the evidence presented-including the
testimony of Burch that Thomas possessed crack cocaine-that the substance
was cocaine base within the meaning of the statute. See 21 U.S.C. 841(a)(1),
(b). Therefore, we find no error in the district court's decision not to use
Thomas' proposed jury instruction.

IV.
20

Because we conclude that Thomas' arguments are without merit and do not
require reversal, we affirm his convictions.
AFFIRMED

Count One of the indictment charged Thomas with possession of 50 grams or

more of cocaine base with intent to distribute. Count Two charged Thomas with
possession with intent to distribute cocaine. Count Three charged Thomas with
conspiracy to possess with intent to distribute 50 grams or more of cocaine base.
Count Four charged Thomas with conspiracy to possess with intent to distribute
cocaine. Count Five charged Thomas with using and carrying a firearm in
relation to a drug trafficking crime

The district court instructed the jury that "it is up to [them] to decide ... whether
[the substances in question] are cocaine or cocaine base."